United States v. Jones ( 2015 )

UNITED STATES NAVY-MARINE CORPS
COURT OF CRIMINAL APPEALS
WASHINGTON, D.C.
Before
J.A. FISCHER, D.C. KING, J.P. ELLINGTON
Appellate Military Judges
UNITED STATES OF AMERICA
v.
PHILLIP A. JONES
OPERATIONS SPECIALIST SECOND CLASS (E-5), U.S. NAVY
NMCCA 201500099
GENERAL COURT-MARTIAL
Sentence Adjudged: 13 Nov 2014.
Military Judge: CAPT Charles Purnell, JAGC, USN.
Convening Authority: Commander, Navy Region Mid-Atlantic,
Norfolk,, VA.
Staff Judge Advocate's Recommendation: CDR S.J. Gawronski,
JAGC, USN.
For Appellant: CDR Glenn Gerding, JAGC, USN.
For Appellee: Mr. Brian Keller, Esq.
11 June 2015
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OPINION OF THE COURT
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THIS OPINION DOES NOT SERVE AS BINDING PRECEDENT, BUT MAY BE CITED AS
PERSUASIVE AUTHORITY UNDER NMCCA RULE OF PRACTICE AND PROCEDURE 18.2.
PER CURIAM:
A military judge sitting as a general court-martial
convicted the appellant of one specification of sexual assault,
one specification of abusive sexual contact, and one
specification of unlawful entry in violation of Articles 120 and
134, Uniform Code of Military Justice, 10 U.S.C. §§ 920 and 934.
The military judge sentenced the appellant to confinement for 23
months, reduction to pay grade E–1, and a bad-conduct discharge.
The convening authority (CA) approved the sentence as adjudged
but, pursuant to the pretrial agreement, suspended all
confinement adjudged in excess of 15 months.
After careful consideration of the record of trial and the
parties’ pleadings, we conclude that the findings and the
sentence are correct in law and fact and that no error
materially prejudicial to the substantial rights of the
appellant was committed. Arts. 59(a) and 66(c), UCMJ.
Failure to Formally Enter Pleas on Record
Although submitted without assignment of error, we note the
failure to record the appellant's formalized pleas of guilty to
all of the charges on the record constituted procedural error.
However, the omission of formalized pleadings in this case was
not materially prejudicial to the substantial rights of the
appellant and therefore harmless error. See United States v.
Loya, No. 201200436, 2013 CCA LEXIS 498 at *2 n.2, unpublished
op. (N.M.Ct.Crim.App. 20 Jun 2013) (finding although the failure
to record the appellant's pleas on the record constituted
procedural error, no prejudice resulted and there was no reason
to question the findings), rev. denied, __ M.J. __, No. 13-
0701/MC, 2014 CAAF LEXIS 232 (C.A.A.F. Feb. 28, 2014); United
States v. Fuentes, No. 201300006, 2013 CCA LEXIS 490 at *10-11,
unpublished op. (N.M.Ct.Crim.App. 13 Jun 2013) (finding no
prejudice when court-martial proceeded as if accused had entered
pleas of “not guilty” despite no formal entry of pleas), rev.
denied, 73 M.J. 43 (C.A.A.F. 2013); United States v. Jackson,
No. 200900427, 2010 CCA LEXIS 65 at *1 n.1, unpublished op.
(N.M.Ct.Crim.App. 25 May 2010) (finding no error where pleas and
forum selection were reserved at arraignment but never entered
onto the record by the appellant); United States v. Gilchrist,
61 M.J. 785, 787 n.2 (Army Ct.Crim.App. 2005) (finding no error
where after finding a guilty plea improvident the court-martial
proceeded as if no guilty plea had been entered although neither
the appellant nor the military judge formally entered a not
guilty plea).
“We have often observed that the failure to follow a
procedure prescribed by law is error, but a particular
procedural error does not necessarily justify reversal of an
otherwise valid conviction.” United States v. Napier, 43 C.M.R.
262, 267 (C.M.A. 1971) (citations omitted). “If the purpose of
the procedure is not frustrated by what was done and the accused
is not prejudiced, reversal is not ordinarily required.” Id.(citations omitted).
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In this case, the military judge accurately informed the
appellant of the nature of the charged offenses and of the
nature and extent of his rights prior to the providence inquiry.
The military judge ascertained that there was a pretrial
agreement involving a guilty plea to the charges before taking
the plea and discussed the agreement in detail with the
appellant on the record. The military judge also asked the
appellant on numerous occasions throughout the inquiry whether
he still wanted to plead guilty, to which the accused responded
that he did. See United States v. Care, 40 C.M.R. 247 (C.M.A.
1969). Finally, once the military judge established that the
appellant desired to plead guilty, the military judge elicited a
factual basis from the appellant to support the court’s
findings. Id.; see also Art. 45(a), UCMJ; RULE FOR COURTS-MARTIAL
910(c), MANUAL FOR COURTS-MARTIAL, UNITED STATES (2012 ed.).
Accordingly, it is clear from the record that the absence
of a formalized entry of pleas was not materially prejudicial to
the substantial rights of the appellant.
Post-Trial Delay
Additionally, we note that it took 125 days from the date
of trial to the date of the CA's action. Balancing the four
factors under United States v. Moreno, 63 M.J. 129, 142
(C.A.A.F. 2006), we find no post-trial due process violation
occurred.
Conclusion
Accordingly, the findings and the sentence as approved by
the CA are affirmed.
For the Court
R.H. TROIDL
Clerk of Court
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